As a matter of principle, the PMU is opposed to all religious courts or tribunals; be they Rabbinical or Shariah-based, Catholic or Hindu, and would like to stop the encroachment of religious law into the judicial system of Canada. Separate laws for separate people can only contribute to a divisive society and create fertile soil for conflict.

Ms. Boyd admits that the arbitration she proposes "is very much a case of buyer beware." This approach is antithetical to both Canadian and Islamic concepts of justice. Justice is not a commodity and citizens are more than consumers. Providing justice is the responsibility of the state, not the private sector or religious organizations. Canadians should not have to beware lest they be served some form of injustice.

We believe that there are other serious problems inherent in the implementation of Ms. Boyd's recommendations. Much of the difficulty has to do with the fluid nature of Islamic law, which relies upon consensus-building and perpetual consternation. There are no codified "Muslim principles" and no religious bodies that can claim sole authority to determine those principles. Does Ms. Boyd propose to follow Sunni or Shi'i principles? Those of Muslim conservatives, moderates, fundamentalists, feminists, progressives or liberals?

Is she prepared to decide which point of view is truly "Muslim"? In a situation where dispute is inevitable, Ontario will find itself in the position of having to decide what Islamic law is, or what principles it is based upon; the government of Ontario will, in effect, have to take on the responsibility for defining just what "Muslim principles" are.

There are historical precedents that outline the difficulty inherent in Ms. Boyd's proposal, the foremost being the British attempt to codify what was then termed "Anglo-Muhammadan" law in South Asia. One result of the British experiment, which might be seen by some as having been benign or even inclusive in principle, was a stifling of the fluidity inherent in the Shari'a process in favor of a rigid, state-enforced legal system.

The parallels in the Canadian context are well worth pondering. Muslims today, in Canada and all over the world, are in fact debating important issues related to the Shari'a ranging from women's rights, the relationship of Muslims and non-Muslims, and the role of the state in enforcing Islamic law. Which facet of this contested Islamic spectrum would the Canadian government be enforcing? What set of qualifications would be insisted upon for the Muslim scholars: training in an Islamic madrasa? If so, which ones? Knowledge of Canadian law? Or both?

These are not merely theoretical questions, but ones that would have serious consequences by all the parties who would be effected. Once again, the government of Ontario will be in a position of having to determine what qualifies a person as a Muslim scholar and what doesn't, or of having to choose between competing viewpoints, between Sunni and Shi'i, conservative and liberal.

The effect would be that the Canadian government acknowledges one group of Muslims as the spokespersons for all Canadian Muslims. The track record of groups such as Syed Mumtaz Ali's Islamic Institute of Civil Justice, which proposed the inclusion of Muslim arbitration tribunals and some of whose legal opinions can be found at websites such as http://www.islam-online.net/, does not give us confidence that the full range of Islamic practices and interpretations, particularly from the feminist, liberal, and progressive perspectives, would be presented at such arbitrations.

We also fear that the practical implementation of arbitration based on “Muslim principles” will have severe negative ramifications upon many women and children, especially immigrant women who do not speak English or French well, who may not be aware of their rights as Canadians, and who may not be well educated in their rights as Muslims, who may confuse the version of cultural practice that they are most familiar in their home counties with the full spectrum of Islamic law.

We are also alarmed at the prospects of repressive Muslim governments around the world pointing to Canada, and the implementation of “shari’a” within Canada, as a justification for their oppressive legal systems. This is not a comment on Islamic jurisprudence as a whole, but rather on the repressive interpretations of shari’a found in those countries.

It is unrealistic to think that the ayatollahs of Iran, the proponents of Wahabism in Saudi Arabia and other countries will not use this to promote the viability of their oppressive visions.

The PMU demands, on behalf of not only Muslim-Canadians, but all other Canadians who defend the rule of law and constitutionalism and equality, that the matter be referred on a reference to the Ontario Court of Appeal to determine:

• Whether the Arbitration Act confers jurisdiction, outside the Family Law Act and other related family law statutes, to determine disputes of property, children, inheritance and estates in the family context.
  
• If the Arbitration Act does confer such jurisdiction, whether it is constitutional.

In conclusion, we repeat, we are opposed to the use of arbitration in areas of Family Law based on either "Muslim principles" or by any other religious "principles."

We admire and stand firm behind Canada's status as a pluralistic state where the constitutional guarantee of "Freedom of Religion" does not infringe on the principle of the separation of religion and state; a principle crucial to ensuring the equality of citizenship for all Canadians, irrespective of their faith or ancestry.

Omid Safi
Chair
Progressive Muslim Union of North America

Co-signatories :
1. Saleemah Abdul-Ghafur
2. Mona Eltahawy
3. Sarah Eltantawi
4. Tarek Fatah
5. Hussein Ibish
6. Mohja Kahf
7. Michael Muhammad Knight
8. Naeem Mohaiemen
9. Aiman Mackie
10. Ahmed Nassef
11. Ginan Rauf
12. Kareem W. Shora
13. Laury Silvers
14. Pamela Taylor
15. Zuriani ‘Ani’ Zonneveld